Guest Blogged by Ernest A. Canning
“This long delay in the seating of Minnesota’s second U.S. Senator has come at a time when our state badly needs help from Washington. Since Election Day, Minnesota has lost 56,000 jobs. Since Election Day more than 9,000 Minnesota families have lost their homes to foreclosure.”
--Senator-elect Al Franken (D-MN), 4/13/09 statement
The Monday, April 13, 2009 decision [PDF] came as as no surprise, certainly not here at The BRAD BLOG where we concluded on Feb. 22, 2009 that former Sen. Norm Coleman’s legal challenge to the Jan. 5, 2009 bi-partisan MN state canvassing board's determination that Al Franken had won the U.S. Senate election was “dead in its tracks.”
Earlier this month, at a time when the mainstream media got it wrong, we accurately reported that the April 7, 2009 order [PDF] meant that the last of the lawfully cast votes had been counted; that Franken won, and; Coleman lost. We went on to predict that the three-judge panel would likely “provide a written explanation of its denial of any other relief…when it enters a final judgment…” We added: “But make no mistake. There are no more votes to be counted. 312 votes is the margin of victory for Al Franken over Norm Coleman.”
In fact, there were no more votes to be counted, as we reported, even as the bulk of the rest of the media hedged their bets. So with the votes all tallied determining that Franken was the victor, and Coleman lacking any legitimate legal recourse, what are Franken's legal and political options, and when might he finally take his rightful seat in the U.S. Senate?...
Franken's Clear Victory
AP's bizarre Coleman-friendly reportage on it notwithstanding, the three-judge panel's April 13th final decision was clear, concise and unambiguous on the ultimate question of victory or defeat:
While the outcome came, to us at least, as no surprise, the court's latest, 68-page decision stands out as an exquisite piece of judicial craftsmanship. Every one of Coleman’s factual and legal arguments was carefully inspected, dissected; exposed for its lack of substance and then discarded. The court noted, for example, that while Coleman alleged in his Notice of Contest “that county election officials wrongfully accepted absentee ballots that were opened and counted on Election Day,” Coleman “failed to identify any such ballots in response to [Franken’s] interrogatories” and that the court “received no evidence that these votes would have changed the outcome….No evidence was presented…that facially invalid ballots were wrongfully included in the vote totals certified by the Board.”
Time and again; issue-after-issue, team Coleman failed to meet its burden of proof. Franken's attorneys had it right when they described the Coleman case as "Big boat; no Walleye."
The court took out a scalpel; then gutted Coleman’s equal protection argument. Neither minor errors, variances in resources/equipment at the local level nor the fact that procedures vary somewhat from county-to-county make for an equal protection violation.
Bush v Gore, the three-judge panel observed, was self-limited to the unique circumstances of the prematurely stopped Florida 2000 recount. It provides no support for Coleman’s effort to negate the vote on equal protection grounds. There, the problem was attempting to meet Florida’s “intent of the voter” requirement in “the absence of specific standards to ensure its equal application.”
Minnesota, by contrast, has “state-wide standards governing absentee voting” that are “uniform and explicit and apply in every county and city in the state," the three-judge election panel pointed out in their Monday decision. "The Court heard compelling testimony that election officials and election judges throughout the state’s 87 counties and 4,128 polling stations were trained under a comprehensive training program based upon Minnesota law....” The court made an express finding that “local officials and election judges operated under the same standards on Election Day.”
Yet Coleman attorney, Ben Ginsberg, has vowed to appeal, asserting that 4,400 Minnesotans were "wrongly disenfranchised." By this, Ginsberg is referring to the three-judge panel's February 13, 2009 ruling which found that Minnesota's strict standards for the opening and counting of absentee-ballots must be applied on a ballot-by-ballot basis. Ginsberg will be appealing this ruling to a MN Supreme Court which, in Coleman v Ritchie (March 6, 2009), already ruled [PDF] that those strict standards must be applied. Good luck with that, Mr. Ginsberg.
So there you have it. While the numbers in this election may have been close, the so-called "contest" was a one-sided affair.
So what are the real options --- legal, political and realpolitik --- for the Senator-elect at this point?
The New York Times, which has now joined with former Republican Congressman and MSNBC host, Joe Scarborough, in telling Coleman to "give it up," (see video at right) reported that Franken, by choice, has adopted a low profile, evading discourse with the national media as both he and Coleman occupy a "political twilight." The key question is whether, in the wake of his smashing judicial victory, a mostly self-imposed silence, punctuated by the exception embodied in the quote at the beginning of this piece, reflects the wisest political strategy.
Franken's self-inflicted national media silence must be contrasted not only to team Coleman's ubiquitous posturing about equal protection and 4,400 allegedly disenfranchised voters, but to the strident threat from the Republican hard-right, led by the chair of the Republican Senatorial Campaign Committee (RSCC), Sen. John Cornyn's (R-TX), threat to launch WW III if Senate Democrats try to seat Franken before Coleman's frivolous legal challenges are eventually exhausted in lengthy federal court proceedings.
In a recent op-ed, Paul Krugman, observed:
But here’s the thing: the G.O.P. looked as crazy 10 or 15 years ago as it does now. That didn’t stop Republicans from taking control of both Congress and the White House. And they could return to power if the Democrats stumble.
Right now, the agenda of these crazies --- and yes, the RSCC have exposed themselves as "stolen election" conspiracy theorist crazies --- is to block the seating of a 59th member of the Senate Democratic caucus in order to enhance their ability to filibuster any and all of the Senate Democrats' agenda. In the face of insanity, Franken's silence may not be golden.
One course open to Franken is to leave the legal issues to his very able attorneys; travel to Washington where he could begin lobbying Senate Democrats (and the few reasonable Republicans) to put an immediate end to the hard-right's pseudo-legal charade. The U.S. Senate has the plenary power, as granted by the U.S. Constitution, and as confirmed already by the MN Supreme Court, to seat Franken any time they wish. They can do so with or without certification from Minnesota’s Governor and Secretary of State.
The three-judge panel’s meticulous decision supports such a course of action. The court did more than simply declare Franken the winner. It revealed that any further legal appeals must be considered frivolous and solely intended to cause unnecessary delay.
But there is a political downside. Under Minnesota law, neither Governor Pawlenty nor Secretary of State Ritchie, can certify the election until Coleman abandons his promised appeal, or until he loses in the Minnesota Supreme Court. While the Coleman legal challenge has no leg to stand on, further lobbying prior to the MN Supreme's anticipated rejection of the Coleman appeal would open Franken to the charge that he is attempting to evade the letter of the very state laws which formed the cornerstone of his victory.
Given the expedited manner in which the Minnesota Supreme Court has handled previous appeals, a final state court decision, again declaring Franken the winner, may well issue within a couple months of a Coleman appeal. Pawlenty would then risk a major backlash from Minnesota voters in the next election --- and, indeed from national voters, as he's considered a serious contender for the 2012 GOP Presidential nomination --- should he join with the crazies in refusing to certify until Coleman had exhausted his challenges in federal court. The MN Supreme's could also order that Franken's certification be signed by both Pawlenty and the Democratic Sec. of State Mark Ritchie.
In either case, Franken, at that point, would be in a solid position --- legally and politically --- to then lobby the Senate hard and directly for an immediate seating, even if Coleman chooses to continue his fool's errand with an appeal to the U.S. Supreme Court.
A declaration by the Minnesota Supreme Court that Franken lawfully won the election would, hopefully, encourage any reasonable Republican Senators, presuming there still are any, to put nation before party and refuse to filibuster. Unfortunately, even by then, Democrats may have to find two such reasonable Republicans in the chamber, instead of just one, as will be the case after Senator Franken is finally seated.
Ernest A. Canning has been an active member of the California State Bar since 1977 and has practiced in the fields of civil litigation and workers' compensation at both the trial and appellate levels. He graduated from Southwestern University School of Law where he served as a student director of the clinical studies department and authored the Law Review Article, Executive Privilege: Myths & Realities. He received an MA in political science at Cal State University Northridge and a BA in political science from UCLA. He is also a Vietnam vet (4th infantry, Central Highlands 1968).